“Myth: Obamacare should be unconstitutional.”

As with some other claims on the Democratic National Committee’s “Your Republican Uncle” website, this claim misleads with ambiguity.

The Facts

In November of 2013 the Democrat National Committee kicked off “yourrepublicanuncle.com,” a website the DNC says is intended to answer holiday arguments from Republican relatives. This installment deals with another item from the health care section. The DNC says it’s a myth that Obamacare should be unconstitutional.

The DNC offers this explanation:

Well… it’s not. Despite the fact that a bunch of Republican Attorneys General spent a boatload of taxpayer dollars trying to prove otherwise, the Supreme Court ruled that the Affordable Care Act was constitutional in 2012.

The DNC’s justification was sourced to the White House website, as with other claims we’ve checked from its Your Republican Uncle website. The explanation there dealt with a different supposed myth, that the “personal responsibility requirement”—the penalty on citizens who do not get health insurance coverage meeting ACA standards—is unconstitutional:

Legal experts and federal judges appointed by Democrats and Republicans agree that the Affordable Care Act is constitutional.

The White House website offers no supporting citation and does not specify what type of consensus exists among legal experts and federal judges that the ACA’s individual mandate is constitutional.

Analyzing the Rhetoric

We’ll address the string of claims made or implied by the DNC, and then look at the related claim from the White House website.

Unconstitutional?

What does a Republican uncle mean when he says Obamacare should be unconstitutional?

It’s not the easiest of questions, for the ACA has a complex set of features. The courts have ruled on some of the features. The Supreme Court, for example, found the law constitutional on the question of its penalty for not having insurance. In the same ruling, the Court struck down a part of the ACA it said improperly coerced the states into expanding Medicaid.

Some are suggesting a new constitutional challenge to the ACA. Based on the Supreme Court finding the individual mandate constitutional justified through Congess’ power to tax, the passage of the law was procedurally flawed.

Former federal prosecutor Andrew C. McCarthy explains:

We now know Obamacare was tax legislation. Consequently, it was undeniably a “bill for raising revenue,” for which the Constitution mandates compliance with the Origination Clause (Art. I, Sec. 7). The Clause requires that tax bills must originate in the House of Representatives. Obamacare did not.

Art. 1, Sect. 7 starts with “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

In addition, a lawsuit challenges whether persons obtaining insurance through a federally run state insurance exchange would qualify for subsidized coverage.

Unless we accept that the Supreme Court is infallible, we won’t settle whether the ACA “should” be unconstitutional. That’s a matter of opinion where one can make a plausible case either way. The ACA’s complexity provides a number of areas for constitutional challenges, and we don’t yet know how those will turn out.

“a bunch of Republican Attorneys General spent a boatload of taxpayer dollars”

While it’s true that Republican attorneys general spent taxpayer money fighting the ACA up to the Supreme Court, the Democrat attorney general of Louisiana was also part of the suit (Louisiana A.G. Bobby Caldwell later switched to the Republican Party). Gallup found 7 in 10 Americans believed the individual mandate was unconstitutional. That’s not all Republicans, so the state attorneys general were arguably fairly representing their constituents by challenging the law.

The states did succeed convincing the Court to overturn the ACA’s provision that cut off federal funding of Medicaid to states that resisted implementation of the reform law.

“the Supreme Court ruled that the Affordable Care Act was constitutional in 2012”

As noted above, the Supreme Court allowed the ACA to stand in the main, but overturned part of it with its 2012 decision.

“Legal experts and federal judges appointed by Democrats and Republicans agree that the Affordable Care Act is constitutional”

This claim from the White House implies a consensus of support for the health care reform law’s individual mandate. Legal experts were divided on the question as were federal judges. Chief Justice John Roberts, appointed by President George W. Bush, serves as the key to this argument. If Justice Roberts had not sided with the liberal wing of the Court, the Court would have ruled the ACA unconstitutional.

It’s fair to point out a Republican appointee authored the majority opinion, but not to suggest any one-sidedness of opinion on the part of legal professionals about the ruling.

Summary

“Myth: Obamacare should be unconstitutional.”

It’s absurd to call a plausible opinion “myth.” But, taking the DNC charitably, we would recognize that the Supreme Court’s 2012 decision on the ACA renders moot the opinion that the individual mandate is unconstitutional.

Using the charitable interpretation, the DNC’s claim results in a fallacy of one-sidedness. It slips past the audience lingering constitutional challenges to the ACA and encourages, via a fallacy of ambiguity, the belief that the entire issue is settled.

“a bunch of Republican Attorneys General spent a boatload of taxpayer dollars”

It’s true that Republican attorneys general spent taxpayer money trying to overturn the ACA. But the statement leaves out important elements of the story, such as the Democrat attorney general from Louisiana who joined the lawsuit and the strong public sentiment running against the individual mandate’s legality. The slanted presentation lays a rhetorical booby trap encouraging false conclusions.

“the Supreme Court ruled that the Affordable Care Act was constitutional in 2012”

Part of the law was struck down in 2012. Otherwise it’s true the law survived most of the challenges before the Court at that time. More legal challenges await the ACA.